16 Fair Empl.prac.cas. 674, 15 Empl. Prac.dec. P 8021priscilla E. Chavez, Plaintiff-appellant, v. Tempe Union High School District # 213, Elias Esquer, P. M.fullenwider, John W. Trimble, H. Hood and J. Young, Members,tempe Union High School District# 213 Board of Education, Intheir Official Capacities, William Cox, Principal of Marcosde Niza High School, Defendants-appellees, 565 F.2d 1087 (9th Cir. 1977)

Chavez brought suit under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1983 against the Tempe Union High School District (the district) and William Cox, principal of Marcos de Niza High School, alleging that they had denied her employment on the basis of her national origin and that the employment practices of the district were impermissibly discriminatory. Following a non-jury trial, the district judge concluded that Chavez' civil rights had not been violated and held in favor of the district and Cox. We affirm.

The district tentatively decided sometime before 1968 to open a new high school to be called Marcos de Niza. In 1968, Cox was selected as principal elect. During the next three years, Cox appeared at several faculty meetings, both district-wide and at individual schools, in order to publicize the anticipated opening of Marcos de Niza. At these meetings he announced that positions would be available at the new school and that teachers within the district were encouraged to apply.

Prior to the opening of Marcos de Niza in the fall of 1971, Cox received 52 applications from teachers within the district. From these applicants, Cox selected teachers and acting department heads. For acting chairperson of the language department, he selected Mrs. Janet Tone. Cox testified that over the course of the 1971-72 school year, Tone performed well in her position as acting department chairperson. Accordingly, he informed her on February 15, 1972, that she would be appointed as permanent chairperson of the department for the 1972-73 school year.

Much of the controversy in this case pertains to the circumstances under which Tone was appointed to be permanent head of the language department. First, prior to advising Tone that she would be language department chairperson for the 1972-73 school year, Cox did not advertise the availability of nor did he do any recruiting for that position. Second, at the time of her appointment, Tone did not meet the formal qualifications for department head, as stated in the District Policy Manual, nor would she meet those qualifications by the beginning of the 1972-73 school year.¹ 

Sometime in 1971 or early 1972, Chavez, who was then employed by the district as a teacher at another high school, decided that she would like to be chairperson of the language department at Marcos de Niza. The evidence is in conflict as to when she actually applied for the position. Chavez testified that it occurred during a telephone conversation with Cox in March 1972. According to Cox, Chavez first applied during an April 13 meeting in his office. At that time, according to Cox, he told her that because he already had a department head, the position was not open.

Upon being denied the position of language department chairperson, Chavez filed a complaint with the Equal Employment Opportunity Commission and was issued a letter to sue, whereupon she brought suit against the school district and Cox. Following a non-jury trial, the district judge concluded as a matter of law that the district had not violated Chavez' civil rights. Rejecting Chavez' claim of overt discrimination, he made findings of fact to the effect that Chavez was not denied the position of language department chairperson because of her national origin; instead, she was denied the position because, at the time of her application, the position was already filled as a result of Tone's prior appointment. By implication, the court also held that at the time of Tone's appointment, the school district's employment practices were non-discriminatory and that the district was under no obligation to institute any different hiring practice. In addition to his rulings on the merits, the district judge also awarded costs to the district and Cox.

On appeal, Chavez raises two central contentions. First, she argues that the court's findings of fact concerning overt discrimination had insufficient support in the record. Second, she asserts that the court erred as a matter of law in its implied conclusion that the employment practices of the school district did not violate her civil rights. Chavez also argues that the district judge erred in his award of costs.

Overt discrimination on the basis of national origin may violate both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. Our task is to determine whether Chavez has proven a violation of either statute.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court held that a complainant in a suit under Title VII of the Civil Rights Act of 1964 is required to carry the burden of proving a prima facie case of discrimination. Id. at 802, 93 S. Ct. (1817) at 1824. The complainant may meet this burden by showing:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

Id.²  A showing of the four factors identified in McDonnell Douglas raises an inference of discriminatory motive, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977), which is a critical factor where, as here, plaintiff alleges disparate treatment on the basis of race. Id. 431 U.S. at 335, 97 S. Ct. at 1854 n. 15.³ 

We note that these four elements assume the existence of a fifth: that the position in question had not already been filled before it was sought by the complainant. Necessarily, the failure to prove the existence of a job opening is a fatal defect in a prima facie case of overt discrimination. Id.431 U.S. at 358, 97 S. Ct. at 1866 n. 44.⁴  The trial court made findings of fact to the effect that at the time Chavez applied for the position of language department chairperson at Marcos de Niza the position was no longer available because of Tone's prior appointment. If we uphold these findings on appeal, Chavez' prima facie case fails.

In regard to the time of the hiring of Tone, the district judge found that:

In February, 1972, Defendant Cox decided to appoint Janet Tone as department chairman for the following year and personally told her of the appointment in a meeting with her on February 15, 1972. His selections of all department chairmen were automatically approved up the line.

The testimony of Cox at trial and the statement of Tone in response to Chavez' interrogatories amply support the court's determination with regard to Cox's conversation with Tone on February 15, 1972.⁵  There is also support for the finding concerning automatic board approval of Cox's decisions. The record shows that the school board had never rejected a hiring decision made by Cox. Thus, the court was not clearly erroneous in determining as a factual matter that Cox's decisions were automatically approved.

In resolving the controversy concerning the time of Chavez' application, the district judge found as follows:

Plaintiff Chavez applied for transfer to Marcos De Niza High School on May 15, 1972, as teacher and department chairman. At the time of this application, the position was filled by reason of prior appointment by Defendant Cox of Janet Tone as department chairman of the Foreign Language Department.

We find that the court was clearly erroneous as to the actual date of Chavez' application. In light of the district's informal application procedures,⁶  Chavez' discussion with Cox on April 13, 1972, admitted by Cox, must be held to constitute an application. However, this does not undermine the court's finding with regard to the timing of the application in relation to Tone's appointment. The evidence in the record demonstrates that Chavez made no application to Cox, or anyone else authorized to accept applications, prior to the middle of March 1972. Tone was appointed as permanent chairperson on February 15, 1972. Thus the district judge's factual determination that at the time of Chavez' application, the position was already filled by reason of Tone's prior appointment was not clearly erroneous. Accordingly, we find that Chavez failed to prove that the position was available and thus failed to establish a prima facie case of overt discrimination under Title VII.

Chavez also brought this suit under 42 U.S.C. § 1983, alleging that by discriminatorily denying her employment, the district and Cox abridged her constitutional rights to due process and equal protection of the laws. The district court properly found that there was no merit in this claim.

The same factors that were critical to our decision on the Title VII claim also persuade us that the district court did not err in concluding that the district and Cox had no discriminatory purpose⁷  in refusing to hire Chavez as permanent head of the language department. The supportable findings demonstrate that she was denied it because the position had already been filled at the time of her application. Thus, Chavez' section 1983 claim fails.

Chavez' second contention is that the employment practices of the school district were discriminatory and violated her civil rights. She asserts, in effect, that even if the position of language department head were not available at the time she applied for it, the employment practices which led to this result were themselves discriminatory. Once again, we must evaluate this claim in terms of both Title VII and section 1983.

On numerous occasions the Supreme Court has pointed out that in enacting Title VII of the Civil Rights Act of 1964, Congress "intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 96 S. Ct. 1251, 1263, 47 L. Ed. 2d 444 (1976). Accord, Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 800, 93 S. Ct. 1817; Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). Even employment practices carried out with no discriminatory intent may be illegal if they result in discrimination on the basis of race. Id. at 432, 91 S. Ct. 849. Thus, there is a legal basis for Chavez' attack upon the district's employment practices. The question before us is whether she has met her burden of proving that the practices complained of constituted discrimination in violation of Title VII. General Electric Co. v. Gilbert, 429 U.S. 125, 137 n. 14, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975); McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S. Ct. 1817.

We first consider the procedure whereby Cox advanced Tone from acting chairperson of the language department to permanent chairperson without advertising that the permanent position was available and without recruiting minorities. Although this procedure is non-discriminatory on its face, Title VII proscribes even facially neutral practices and procedures not justified by business necessity which perpetuate the effects of past discrimination. Griggs v. Duke Power Co., supra, 401 U.S. at 430-31, 91 S. Ct. 849. Chavez' complaints raise the question of whether the procedure employed was objectionable on these grounds. If an acting chairperson were previously selected in a discriminatory manner, automatically appointing her permanent chairperson without giving minorities an opportunity to apply for the position might well perpetuate the effects of past discrimination in violation of Title VII.⁸ 

Moreover, even if the district did not strictly enforce its policy of automatic advancement, the inability of minorities to learn about the availability of permanent positions as department head could permit a de facto policy of internal advancement, leading to the perpetuation of past discrimination in the selection of acting department heads. Swint v. Pullman Standard, 539 F.2d 77, 101-02 (5th Cir. 1976); Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th Cir. 1972); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1383 (4th Cir.), cert. denied, 409 U.S. 982, 93 S. Ct. 319, 34 L. Ed. 2d 246 (1972).

Here, however, the evidence points to the conclusion that there was no discrimination against Chavez in the selection of acting department heads. Thus, there was no past discrimination with regard to her which might be perpetuated by the advancement procedure at issue here.

Chavez was given a fair opportunity to apply to Marcos de Niza in time to be considered for the position of acting department chairperson. Through the series of announcements made by Cox prior to the opening of the school, the school board made efforts to inform all teachers within the district that positions would be available at Marcos de Niza and that they were encouraged to apply. Chavez, who was teaching within the district at the time of these announcements, simply failed to take advantage of the opportunity which was given to her.⁹ 

Furthermore, if she had applied, there is no indication that Chavez would have been subject to discrimination in the actual selection of acting department heads. There were three Mexican-Americans who applied to Marcos de Niza prior to the opening of school. Of these, two requested to be department chairpersons and were appointed by Cox to be heads of their respective departments. One subsequently became assistant principal of the school. Based on these facts, there is no reason to believe that Cox would have impermissibly discriminated against Chavez in selecting an acting chairperson of the language department if she had also applied prior to the opening of school. Because Chavez had a fair opportunity to obtain a position as acting department head, the complained-of advancement procedure was not discriminatory as to her.¹⁰ 

2. The Departure From Policy Manual Standards

Chavez also charges that the failure of the district to follow its own standards concerning qualifications for department chairpersons was impermissibly discriminatory under Title VII. We disagree.

Chavez has not shown that the failure of the district to follow its own standards had a disproportionately unfavorable impact on minorities. Indeed, as we have already seen, both Mexican-Americans who sought department head positions at Marcos de Niza were appointed to be the heads of their respective departments. This is striking evidence that the school's departure from policy manual standards did not result in the exclusion of minorities.

Nevertheless, Chavez asserts that the district was under an affirmative duty to impose pertinent, objective criteria for the hiring of personnel and to follow those criteria. In support of this proposition, she cites Carey v. Greyhound Bus Co., 500 F.2d 1372 (5th Cir. 1974) and Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir.), cert. denied,419 U.S. 1033, 95 S. Ct. 515, 42 L. Ed. 2d 308 (1974). But the question before us is not whether the district is under an affirmative duty to impose objective standards; it is whether the failure to impose and follow such standards is impermissibly discriminatory. Both Carey and Baxter were cases where the evidence raised an inference that there had been discrimination against minorities and that the lack of objective standards in hiring was an instrumental factor in this result. Here, however, we have already determined that the failure of the district to follow the policy manual standards was not discriminatory.

We conclude that Chavez has failed to establish a prima facie case of discrimination under Title VII with regard to the district's departure from the policy manual standards.

Neither the district's advancement policy nor its failure to adhere to its own policy manual standards gives Chavez a cause of action under section 1983. Because section 1983 incorporates by reference the terms of the Constitution itself,¹¹  it appears that an action under this statute at least to the extent it relies upon the Equal Protection Clause of the Fourteenth Amendment requires proof not only of discriminatory impact, but also of discriminatory intent as established by the Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976).

Chavez has not met either of these requirements. Not only has she failed to show that the district's employment practices had a racially discriminatory impact, as explained above, but it is plain from the record that she has not demonstrated that there was a racially improper motive underlying those practices.¹²  Thus, Chavez' section 1983 attack is doubly defective.

The final issue we must decide is whether the district judge erred in awarding costs to the district and Cox. We hold that he did not.

Pursuant to Rule 54(d), Fed. R. Civ. P., the prevailing party is entitled to costs unless the court rules otherwise. Whether costs are awarded is a decision to be made by the district judge, and his decision will not be overturned unless he has abused his discretion. K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 476-77 (9th Cir. 1974). In this case, Cox and the school district were the prevailing parties. We find that the district judge did not abuse his discretion.

AFFIRMED.